iii. The right of discussion; that is, the obligation of the creditor [under Roman Law] to proceed against or discuss the principal debtor, if solvent, before he can attach the surety.

iv. The liens incident to a contract; e.g.

a. The lien of a vendor upon lands until the purchase money be paid, [according to English Law.]

[B. The like lien upon goods according to the Roman, and some modern, systems of Law.]

7. The right of stoppage in transitu (h) in case of the insolvency of the purchaser.

8. The lien of a bottomry bond.

e. The lien of mariners on the ship for their wages.

. The lien for priority of payment in certain obligations. This question is partly considered in some subsequent observations on the transfer of obligations.

DCCXXX. Story pronounces his opinion that, with regard to these and the like cases, wherever the liability, the right, the lien, or the privilege is created by the Law of the place in which the contract is made, "it will generally, although not universally, be respected and enforced [in all places where the property is found, or where the right can be beneficially enforced by the lex fori.”] (i)

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It is also said by the same high authority, that the converse of this proposition is true, that if the lien or privilege does not exist in the place in which the contract is made, it will not be allowed in the place in which it is performed, or in which a suit is brought to enforce its per

(h) Vide post, chapter xli.

(i) Story, s. 322 b [citing 3 Burge, Comment. (Part ii. ch. 20) vol. iii. pp. 770, 771, 779.]

Carroll v. Waters, 9 Martin, (Louisiana) Rep. p. 500.

But as regards mortgages of ships, the Courts of Louisiana have, in aparent violation of the comity of nations, decided otherwise. See the English cases of Simpson v. Fogo (1 John. & H. p. 18, 29 L. J. Ch. p. 657; 1 Hem. & M. p. 195, 32 L. J. Ch. p. 249), and Liverpool Marine Credit Co. v. Hunter (L. R. 3 Ch. App. p. 479), referred to later on.

formance, although the Law of that place would sustain it (k).

Foreign jurists, however, though generally agreeing in this doctrine with respect to liens, not unfrequently distinguish between their effects upon moveable and immoveable property; governing the liens on the latter lege. rei sitæ, and the former lege loci contractús (1).

DCCXXXI. The recognition [by foreign countries] of the lien does not imply the recognition of its title to priority over other liens [justly acquired in, and under the laws of such foreign countries, merely] because such right of priority attached to the lien in the place of its creation (ll). The doctrine of the United States Courts is, that "the right of priority forms no part of the contract itself. It is "extrinsic, and it is rather a personal privilege dependent "on the Law of the place where the property lies, and "where the court sits which is to decide the cause " (m).

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Some eminent foreign jurists hold this doctrine without qualification; others take distinctions as to the domicil of the obligor or debtor, some insisting that in the case of moveables the rule of the original domicil travels with the person, some, like Rodenburgh, maintaining that if the

(k) Story, ubi sup. Whiston v. Stodder, 8 Martin, (Louisiana) Rep. pp. 95, 134-5.

(1) Story, s. 322 c.

(U) Story, s. 323.

(m) Chief Justice Marshall, in Harrison v. Sterry, 5 Cranch, (Supreme Ct. U.S.A.) Rep. at p. 298, et seq.

See too Ogden v. Saunders, 12 Wheaton (Sup. Ct.), Rep. at pp. 361-2. The High Court of Admiralty has similarly decided in England, The Union, Lush. Adm. Rep. p. 128.

Thus Hertius: " Enimvero, quia antelatio" (priority) "ex jure singulari vel privilegio competit, non debet in præjudicium illius civitatis, sub quâ debitor degit et res ejus mobiles contineri censentur, extendi. Ad jura igitur domicilii debitoris, ubi fit concursus creditorum, et quo omnes cujuscunque generis lites adversus illum debitorem propter connexitatem causæ traduntur, regulariter respiciendum erit."-De Collis. Leg. § 4, n. 64; cited Story, s. 325 b.

domicil be changed, the Law of the new domicil operates upon the moveables in the old domicil (n).

But, amidst this conflict of opinions as to liens upon moveable property (o), there is a preponderance of authority in favour of the operation of the lex rei site upon immoveable property (p); though there are not wanting dissentients from this doctrine.

It is a doctrine, however, firmly imbedded in the Law of England and of the United States.

DCCXXXII. It is a maxim which applies to all the foregoing considerations, and which is pretty generally adopted by States, that in the case of an irreconcileable conflict between rights acquired lege loci contractús and those acquired lege fori, the former yield to the latter; that is, Comity between States gives place to the positive Law of the particular State which has judicial cognizance of the matter (q). This maxim has indeed been already expressed in the early part of this volume.

DCCXXXIII. According to the jurisprudence of the United States, the Law of the place where the contract is

(n) Rodenburgh, tit. ii. c. v. § 16; cited Story, s. 325 g. (0) See the authorities collected, Story, ss. 322 c–325 n. (p) Story, s. 325 o. [Vide infrà, chap. xxxviii.]

(q) Vide antè, § delxxiii.

Potter v. Brown, 5 East, Rep. p. 124 (Lord Ellenborough: a leading English case).

Saul v. his Creditors, 5 Martin, (Louis.) Rep. New Series, p. 569 (leading case in the United States), given in full infrà, Appendix I. Kent, vol. ii. p. 461.

Story, ss. 326, 327, 327 a.

Huberus, De Conflictu Legum, Pars II. lib. i. tit. iii. § 11: " "Magis est ut jus nostrum quam jus alienum servemus. See also a very important case, decided by Mr. Justice Porter (who also decided Saul v. his Creditors)-Ohio Insurance Company v. Edmondson, 5 Louisiana Rep. pp. 295, 306.

[Burge, Comm. vol. iii. pp. 778, 779.]

As to conflict between maritime policies, vide infrà, § dcccxxviii., and Story, s. 327 b.

made will govern the contract as to the liability of partners and part owners [for partnership debts].

If by that Law they would be liable in solido, that liability will follow the debt everywhere, although by the Law of the domicil of the partnership the partners might not be liable in solido, but only for a proportionate share (†).

A remarkable illustration of this position, as will be seen hereafter, is offered in the case of bills of exchange; for the Law of some countries holds, that if the drawer was bankrupt at the time when the bill was accepted, the acceptor is discharged from his acceptance; and this consequence travels with the bill everywhere as an inseparable incident (s).

(r) Story, s. 322.

Ferguson v. Flower, 4 Martin, (Louisiana) Rep. New Series, p. 312. Carroll v. Waters, 9 Ib. p. 500.

(s) Pardessus, Droit Comm. art. 1492; cited by Story, s. 322.

CHAPTER XXXVIII.

THE LEX LOCI CONTRACTÛS AND THE LEX REI SITE, CONSIDERED WITH REFERENCE (1) TO THE TRANSFER OF IMMOVEABLE PROPERTY; (2) TO SECURITIES AND LIENS UPON IMMOVEABLE PROPERTY.

DCCXXXIV. In this chapter some observations will be made upon these two questions; viz.—

1. Does the lex loci contractús or the lex rei sitæ govern the transfer of immoveable property?

2. Does the lex loci contractús or the lex rei sita govern as to liens, hypothecs, or mortgages, created in the place where the Contract is entered into, upon immoveable property situated in another State ?

DCCXXXV. 1. The case of a contract respecting the transfer of immoveable property illustrates the variety of the rules which the foreign writers upon Private International Law consider applicable to a contract to which a foreigner is a party (a): they say that,

i. The capacity of the obligor to enter into the contract is determined by reference to the Law of his domicil (b). ii. The like capacity of the obligee by the Law of his domicil.

iii. The mode of alienation or acquisition of the immoveable property is to be governed by the Law of the situation of that property (c).

(a) Folix, liv. i. tit. iii. s. 67.

Story, Conflict of Laws, ss. 363-368, 370-373.

(b) This, it should be remembered, may involve the discussion of ce questions on the change of domicil.

(c) So Rocco, lib. iii. cap. vii. p. 337.